Chafin v. Gay Coal & Coke Co, 6811.

• Court: Supreme Court of West Virginia
• Citation: 156 S.E. 47
• Decision Date: 07 October 1930
• Docket Number: No. 6811.,6811.
• Parties: CHAFIN. v. GAY COAL & COKE CO. et al.

156 S.E. 47

CHAFIN.
v.
GAY COAL & COKE CO. et al.

No. 6811.

Supreme Court of Appeals of West Virginia.

Oct. 7, 1930.

Rehearing Denied Dec. 2, 1930.

Syllabus by the Court.

Where the use of an easement has created an additional, but inconsequential, burden on the servient estate, not contemplated by the grant, and the owner seeks to enjoin the use, the equities may be balanced and relief granted or denied, in the discretion of the chancellor; and, if denied, the right of the owner of the servient estate to sue at law should be saved to him. A case where the discretion of the chancellor in denying injunctive relief has not been abused.

Appeal from Circuit Court, Logan County.

Suit by Mary Chafin against the Gay Coal & Coke Company and others. From a decree of dismissal, plaintiff appeals.

Modified and affirmed.

Livezey, Hogsett & McNeer, of Huntington, for appellant.

Charles L. Estep, of Logan, and Fitzpatrick, Brown & Davis, of Huntington, for appellees.

LIVELY, P.

This controversy is between Mary Chafin, an heir of Moses Mounts, deceased, and Gay Coal & Coke Company, the lessee of Mounts, over the use of the surface of the land leased; in which the heir seeks to enjoin the coal company from using the surface in operating its coal mine under the lease. The trial chancellor refused to enjoin, and dismissed the bill, and Mary Chafin appealed.

Moses Mounts owned a tract of about 850 acres at the junction of Trace fork and Island creek in Logan county, and in 1903 leased it for coal mining purposes to the predecessors of Gay Coal & Coke Company for a period of thirty years, with privilege of renewal for a like term. The lessee was given the usual mining rights, including use of timber, stone, surface for houses, ways, etc., necessary for the successful operation of the lease, but for no other purpose. Shortly after the execution of the lease, the lessee established and now operates a modern coal mine occupying that portion of the surface of the land facing railway transportation, and not prohibited under the lease, with its tipple, ways, miners' houses, store building, and the like. It is the use of this part of the surface thus occupied which is involved here. Moses Mounts died a short time after the lease was given, and this land was partitioned among his heirs by decree of November 10, 1905. That part of the land facing the water courses and the common carrier railroad (a portion of which was occupied by the coal company's houses, tipple, and ways) was partitioned into nine lots (there being nine children of Moses Mounts) designated on the map of partition as lots Nos. 10 to 19, inclusive, and lot No. 17 was allotted to plaintiff, Mary Chafin. On February 6, 1928, her husband deeded to her a one-ninth interest in lot No. 11, which he had acquired mediately from Armel Mounts, who was allotted, by the partition decree, lot No. 11. So, at the time of the institution of this suit, she owned lot No. 17, and according to her husband's testimony all of lot No. 11, both subject to the easement of the coal company lease for the purpose of getting out coal from the 850-acre tract. The partition decree described lot No. 17 as "beginning at a corner of lot No. 16 and with line of same up the hill to the back line of the Moses Mounts estate, and with same up the creek 180 feet, thence down the hill parallel with the lower line to the bottom land and with same to the beginning, containing 3 acres, " subject to the coal lease. Lot No. 11, allotted to Armel Mounts (which plaintiff now claims to own) was also described as beginning at a corner of Rosa Skaggs (lot No. 10) 3-acre lot, and then follows the calls and distances, and as containing 2¹/₄ acres. A photostatic copy of Defendants' Exhibit No. 6, accepted as cor-

[156 S.E. 48]

rect by plaintiff as to exterior boundaries of the area divided into lots 10 to 19, will visualize the partition of the 850 acres, including that portion of the land.included in lots 10 to 19, inclusive; and will visualize the entire controversy.

In 1915, one of the heirs Instituted two

suits, one to set aside the decree of partition, and the other to set aside a decree or judgment invalidating Moses Mounts' will, and for other purposes not pertinent here. Those suits were compromised among the heirs and an agreement entered into by them, designated on its face as a deed between the heirs, reciting the lease, the death of Mounts, the names of his heirs, the invalidation of his will, the decree of partition, the institution of the two suits, above named, the interest of each heir in the estate, and the present owners of those interests; the fact that the coal company had instituted a suit as stake holder of accrued royalties in its hands asking for a decree directing to what persons the said royalties should be paid; referring to...